Argued April 23, 2013
Appeal from the United States District Court for the Western District of Wisconsin. No. 12-CR-00054 — William M. Conley, Judge.
Before Ripple and Hamilton, Circuit Judges, and Stadtmueller, District Judge. [*]
Stadtmueller, District Judge.
On the night of March 21, 2012, City of Fitchburg police officers responded to an anonymous 911 call reporting a group of twenty-five individuals acting loudly and displaying hand guns in a parking lot. Upon arriving at the scene, the officers observed something different: a smaller group of individuals, none of whom appeared to be acting inappropriately. The officers approached this group, which had begun to disperse slowly. For no apparent reason, one of the officers singled out the appellant, Andre Williams, and performed a frisk. Mr. Williams began to resist the frisk and tried to escape, but was ultimately restrained. Thereafter, the officers searched his body and found both a handgun and several 'ecstasy' pills. Mr. Williams was arrested and charged with being a felon in possession of a firearm. He moved to suppress the evidence seized from him, but the district judge ultimately denied his motion. Thereafter, Mr. Williams pled guilty to possession of a firearm as a convicted felon, but reserved his right to appeal. At sentencing, the district judge applied two sentencing enhancements, which significantly increased William's offense level and applicable range of imprisonment under the advisory sentencing guidelines. Following sentencing, Mr. Williams appealed his conviction and sentence to this court, arguing that the evidence used to obtain the conviction should have been suppressed, and, in the alternative, that the district judge erred in applying the sentencing enhancements. We find that the search was unlawful, and accordingly reverse the denial of his suppression motion, vacate his judgment of conviction, and remand the matter for additional proceedings consistent with this opinion. Because we reverse the underlying judgment of conviction, we need not reach the sentencing enhancement issue.
On the night of March 21, 2012, at 11:25 p.m., a woman called 911 to report the presence of a large group of individuals in a parking lot outside of a bar in Fitchburg, Wisconsin. The woman refused to provide her name, but explained that there were approximately twenty-five people, three or four of whom she had observed with "guns out." She did not report any fighting or threatening behavior, instead only informing the 911 dispatcher that the people were being loud while loitering in the parking lot of Schneid's, a local bar (to which the police apparently respond quite often due to reports of violence, gang activity, drugs, and weapons).
As a result of receiving this tip, the dispatcher sounded a tone at the City of Fitchburg Police Department's ("the Department") headquarters indicating a weapons call. That tone issued during the Department's nightly briefing, and a number of officers immediately suited up to respond to the call.
The officers drove to Schneid's parking lot, arriving three to five minutes after the call, and observed a much different scene than that reported by the anonymous caller. Instead of seeing a group of twenty-five belligerent men, the officers discovered only eight to ten individuals standing around a group of cars in the parking lot. At the time the officers approached the group, the individuals were not loud or otherwise acting disruptively, nor were they displaying their firearms. In fact, one of the officers, Ryan Jesberger, testified that he and the other officers from his department were not even sure that this smaller group was the same one that had been reported by the anonymous caller.
The officers approached the group anyway. As they approached, the group apparently began to disperse, but no one attempted to flee the scene. Each member of the group appeared to act in the same manner, avoiding eye contact with the officers and walking slowly away from the area.
For reasons that are entirely unclear from the record, the officers began to perform pat-downs on the members of the group. Officer Jesberger singled out Mr. Williams, in particular, and requested that Mr. Williams step forward and display his hands. At the evidentiary hearing on this issue, Officer Jesberger stated that he started to "zero in" on Mr. Williams "once [Officer Jesberger] saw the way [Mr. Williams] was acting." However, Officer Jesberger did not provide any further detail on what, precisely, piqued his interest in Mr. Williams, as opposed to the other members of the group. While, apparently, Mr. Williams was not making eye contact with the officers and was attempting to slowly move away from the scene, all of the evidence indicates that every other member of the group was doing exactly the same thing.
After Officer Jesberger requested that Mr. Williams step forward, Mr. Williams asked "Why?, " but was compliant in every other respect. At Officer Jesberger's request, Mr. Williams stepped out from his position between two cars, showed his hands, and then placed his hands on his head.
Officer Jesberger then began to pat down Mr. Williams. At that point, Mr. Williams began to move his hands toward his waist. Officer Jesberger warned Mr. Williams not to do so, but Mr. Williams continued to move his hands. Accordingly, Officer Jesberger attempted to handcuff Mr. Williams, who instead pulled away and tried to run from the scene. He did not get very far before other officers took him down to the ground. The officers held Mr. Williams to the ground and directed that he pull his hands out from underneath him, but Mr. Williams did not (or perhaps could not) comply. They then attempted to get him to comply by striking him with their knee and tasering him. This worked, and Officer Jesberger was finally able to handcuff Mr. Williams. However, during this scuffle, another officer injured his knee when he moved it in an unnatural way.
With Mr. Williams successfully detained, the officers performed a pat-down search of his person and recovered a handgun, several ecstasy pills, and approximately $600.00 in cash. They immediately placed Mr. Williams under arrest.
On April 18, 2012, Mr. Williams was indicted in the Western District of Wisconsin, and charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
He then moved to suppress the gun recovered from him during Officer Jesberger's frisk. Mr. Williams argued that suppression was appropriate, because the officers did not have a reasonable suspicion on which to base either their initial investigatory stop or to perform the frisk of Mr. Williams. Magistrate Judge Stephen Crocker held an evidentiary hearing on the motion approximately one week later, after which time he recommended that Mr. Williams' motion be denied. The magistrate judge suggested that the frisk was unconstitutional but was sufficiently deliberate to require exclusion of the gun, by proposing an extension of the logic of Herring v. United States, 555 U.S. 135 (2009), to a warrantless frisk in a Terry stop.
Both Mr. Williams and the government objected to that ruling. Mr. Williams objected to the final determination that the gun should not be suppressed; the government objected to the magistrate's finding that the frisk was unconstitutional.
While the objections were pending before District Judge William Conley, Mr. Williams entered into a plea agreement with the government. He agreed to plead guilty, but reserved his right to appeal if the district judge determined that the gun should not be suppressed.
The district judge eventually determined that the gun should not be suppressed, and Mr. Williams pled guilty. The matter progressed toward sentencing. The probation officer prepared a presentence report, determining Mr. William' guideline range of imprisonment to be thirty-seven to forty-six months. The sentencing judge applied two sentencing enhancements, and ultimately imposed a 70-month sentence.
Mr. Williams appealed, arguing that the district judge erred in failing to exclude the firearm and in applying both of the sentencing enhancements. Because we agree that the failure to exclude the firearm was in error, we need not reach the sentencing issues.
If we determine that the district judge should have suppressed the firearm, then we must vacate Mr. Williams' judgment of conviction. In such a case, we need not review the sentencing enhancement issue.
There are two grounds upon which we can find that the gun should have been suppressed. First, if we determine that the initial stop of Williams, when Officer Jesberger asked him to step out from the group and submit to a frisk, was unconstitutional, then we must also determine that all of the later occurrences, including the frisk and recovery of the firearm, were similarly unconstitutional, and likely warrant suppression. Second, even if we were to determine that the initial stop was permissible, then we must ask whether the frisk itself was constitutional. If we find that it was not, then the later recovery of the firearm was also unconstitutional, likely warranting suppression of the firearm.
For the reasons that follow, we find that the frisk was unconstitutional, and therefore hold that the district judge erred in denying Mr. Williams' motion to suppress. Accordingly, we do not reach the sentencing enhancement issue.
A. Standard of Review
We review the district judge's denial of Mr. Williams' suppression motion, reviewing factual findings for clear error and both legal conclusions and mixed questions of law and fact de novo. United States v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012) (citing United States v. Huebner, 356 F.3d 807, 812–13 (7th Cir. 2004)); United States v. Burnside, 588 F.3d 511, 516–17 (7th Cir. 2009) (citing United States v. Mosby, 541 F.3d 764, 767 (7th Cir. 2008); United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008); United States v. McIntire, 516 F.3d 576, 578–79 (7th Cir. 2008); United States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008)).
In this case, we are called upon to examine the district court's legal determination that Officer Jesberger's stop and frisk of Mr. Williams was constitutional. The parties do not disagree over the factual record, as set forth by the district judge. Rather, their dispute is solely over the application of the relevant law to those facts. Accordingly, our review of the district judge's determination on the stop and frisk must be de novo—particularly because "'what happened' is not an issue, " in this case. United States v. Carlisle, 614 F.3d 750, 754 (7th Cir. 2010) (citing Burnside, 588 F.3d at 516).
As we have already mentioned, there are two junctures at which we could find the search leading to the recovery of the firearm to be unconstitutional: at the moment that Mr. Williams was singled out and stopped, or at the moment that Mr. Williams was frisked. Slightly different legal standards apply to each of those situations, so we address them separately. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 94 (1975) (pointing out that, even if an initial stop is lawful, a subsequent frisk must be separately supported to be constitutional); United States v. McKoy, 428 F.3d 38, 39 (7th Cir. 2005) ...